[25, A. The jurat of a deposition must show by apt words that the oath was administered by the person subscribing the jurat. Powers v. Shepherd, 1 Foster 60.

25, B. A deposition, in the caption of which the words, "before me," preceding the name of the magistrate before whom the deposition purports to be taken are omitted, is incompetent evidence. Powers v. Shepherd, 1 Foster 60.]

26. By the rules of the court of common pleas, "no deposition which has been taken after the Tuesday next preceding the Tuesday on which the term commences, shall be used in the trial of any cause before a jury: Provided, however, that this rule will not be construed to apply to witnesses who may become sick after the time limited as aforesaid, nor to persons who may be bound to sea, nor to depositions taken by consent of the parties, and the consent stated by the magistrate in the caption." 6 N. H. R. 579; Rules, July Term, 1849.

27. "No notice to the adverse party of the taking of depositions shall be deemed sufficient unless served three days, exclusive of the day of service and the day of the caption, before the day on which they are taken. In computing the time of the service of the notice, the Sabbath is to be excluded whenever the notice is served less than seven days prior to the caption; and when the adverse party shall live more than ten miles from the place of caption, one day more shall be allowed for every additional twenty miles. Provided, however, that twenty days' notice shall be deemed sufficient in all cases." 6 N. H. R. 579; Rules, July Term, 1849.

$28. "When the suit is in the name of a nominal party, and the name of the real party is put upon the docket at the time the action is entered, notice of the taking of depositions shall be given to the real party in all cases where the statute requires notice to be given, to the party and in all other cases notice shall be given to the real party, or his attorney or agent." 6 N. H. R. 579; Rules, July Term, 1849. 28, A. "The testimony of witnesses contained in depositions to be used in the courts of common law or chancery, is to be taken only upon answers to written interrogatories proposed at the time by the counsel, and administered by the magistrate. The interrogatories as well as the answers thereto must appear in the deposition, and the answer must follow each interrogatory as it is administered. Upon motion to the court, the depositions which either party proposes to use on the trial, are to be filed with the clerk; and after such motion is granted, no depositions are to be used, except those which are thus filed." Rules, July Term, 1849.

28, B. "In all civil cases when oaths are administered, or depositions are taken abroad to be used in this State, by a person acting as a justice of the peace, notary public, or commissioner, and the oath is certified upon any paper to be used in evidence in this State, the fact that the person has signed his name in either of the said capacities, and has affixed his seal where one is required, to the deposition or caption, or other paper offered in evidence, will be received as primâ facie evidence that he is legally empowered so to act." Rules, July Term, 1849.,

29. The clerk of the court in the county where any action is pending may issue a commission to take depositons in the vacation; which commission shall be directed to any justice of the peace, notary public, or other officer legally empowered to take depositions or affidavits in the State or county where the deposition is to be taken." 6 N. H. R. 579]

§30. Depositions may be taken in perpetual remembrance of any fact or transaction, before any court of record, or before

two justices, one of whom shall be of the quorum. R. S. 381, § 24; C. S. 487, § 24.

$31. Any person wishing to take such depositions shall make a statement in writing, under oath, briefly setting forth in substance his title, interest or claim in or to the subject, or setting forth the facts to which the desired testimony relates, and the names of all persons supposed to be interested therein, and also the names of the witnesses proposed to be examined, which statement shall be delivered to the court or justices before whom the depositions are to be taken. R. S. 381, § 25; C. S. 487, § 24.

§ 32. Notice shall be given in the manner provided by law in cases of depositions taken to be used in actions then pending, to all persons known to be interested in the property or transaction to which the testimony relates. R. S. 381, § 26; C. S. 487, § 25.

§ 33. Every such deposition shall be written, signed and sworn to, as is provided in this chapter in case of depositions in actions pending, with the necessary variation in the form of the oath; and the said court or justices shall annex to each deposition a certificate of the time and place of taking, the name of the person at whose request it was taken, and of all those who were notified to attend and did attend, and shall also annex thereto a copy of the notice, as is prescribed in the twenty-first section of this chapter. R. S. 381, § 27; C. S. 487, § 27.

§ 34. The said statement, deposition, certificate, and copy of notice shall, within ninety days after taking the same, be recorded in the registry of deeds in the county where the land or any part of it lies, if the deposition relate to real estate, and if not, in the county in which it was taken. R. S. 381, § 28; C. S., 487, § 28.

§ 35. All depositions, taken in perpetual remembrance as aforesaid, or a copy of such record, the original being lost, may be used in the trial of any cause between the person at whose request it was taken, and any of the persons named in the statement, and duly notified, or those claiming under them, concerning the title, claim, interest or fact, set forth in the statement. R. S. 382, § 29; C. S. 487, § 29. [See Dearborn v. Dearborn, 10 N. H. R. 473.

§ 36. If the clerk of any court in any other of the United States shall certify that there is a criminal case pending in

such court, and that a person residing in this State is supposed to be a material witness therein, any justice shall, upon such certificate or paper annexed thereto, issue a summons requiring such witness to appear and testify at such court. R. S. 382, § 30; C. S. 487, § 30.

§37. If any person on whom such summons shall be served, having tendered to him twelve cents for each mile to be traveled to and from such court, and two dollars for each day his attendance may be required, shall unreasonably neglect or refuse to attend and testify at said court, he shall forfeit the sum of three hundred dollars to any person who will sue for the same. R. S. 382, § 31; C. S. 487, § 31.

FORMS OF PROCEEDINGS.

483. Summons for witnesses at courts.

H-SS.

THE STATE OF NEW-HAMPSHIRE.

To A. B., of M., in said county, C. D., of B., E. F., of G., in said county.

[L. S.] You are required to appear at the court of common pleas to be holden at A., in and for said county, on the day of, at o'clock in the noon, to testify what you know relating to a plea of the case then and there to be heard and tried betwixt J. S., of and J. D., of, def. Hereof fail not, as you will answer your default under the penalties prescribed by law.

Dated at, the day of -, A. D. 185–.

pl.,

J. P., Justice of the Peace. Instead of the words, "to a plea of the case," &c., say, " to an indictment then and there to be heard and tried betwixt the State of NewHampshire and J. R.;" or,

"to a complaint then and there to be made before the grand inquest for said county, by, against -;" or,

in the probate court, "to a petition of D. A., for the allowance of his account of administration of the estate of J. A., deceased," &c.

484. Summons for witnesses before justices.] (See 483.) to appear before J. P., a justice of the peace for said county, at the inn of B. F., in N., in said county, on the day of, 185–, at o'clock in the noon, to testify what you know relating to a plea of trespass, then and there to be heard and tried betwixt J. S., of, pl., and J. D., of —, def., &c.; or, instead of "plea of trespass," &c., say, a complaint then and there to be heard and tried betwixt the State of New-Hampshire and A. R."

485. To give a deposition.] as in last form to, a plea of the case;" then say, to be heard and tried at the court of common pleas to be

holden at C., in and for said county of M., betwixt J. S., of —, pl., and J. D., of —, def.," &c.

486. To testify before referees, &c.] to appear at the office of J. S., in P., in said county, on the - o'clock in the day of, 185–, at noon, to testify what you know relating to a plea of the case (or the matters in controversy) then and there to be heard and tried before F. G., J. H. and A. R., referees, (or before J. A., auditor,) betwixt J. S., of, pl., and J. D., of —, def., &c.

487. Subpæna duces tuum.] after stating the names of the parties, as in the preceding forms, say," And you are also required to bring with you, and produce at the time and place aforesaid, a certain deed made by ; dated-," &c.; or, a certain promissory note made by- to for the sum of, payable -;" or, "the original book of records of the town of, containing the record of a town meeting holden at -1 on the day of -," &c.:

to -, dated

more briefly; "and to bring with you, and then and there produce a certain receipt, made by to-, dated, for-," &c.

Take notice, that you are hereby required to produce on the trial of this cause a certain deed made by to dated, &c., (describing the deeds, papers, books, letters, &c., desired,) and all other letters, books, papers and writings whatsoever, in any wise relating to the matters in question in this cause. day of, 185-.

Dated the

To Mr. J. D.

Yours, &c.
J. S., by his att'y,

R. A.

Certificate of service.] written on a copy of notice.

I certify that on the day of, 185-, I gave (or left at the usual place of abode of) the said J. D. the original notice, of which the above is a true copy.

J. A.

Hss., ——, 185-. Personally appeared J. A., and made oath that the above certificate by him subscribed is true.

Before me:

489. Return of service of a summons.

H-SS., -

J. P., Justice of the Peace.

185-. I this day summoned the within named A. B. to appear, as within directed, by reading to him this writ, and paid him dollars, cents, as his fees for his travel and attendance. J. M. R., Deputy Sheriff.

490. Affidavit of service.

I, A. M., do testify and say that I summoned the within named A. B. to appear as within directed, by reading to him this summons on the day of August, 185-, and paid (or tendered) him the sum of dollars, cents, as his fees for his travel and attendance. A. M.

H-SS., - 185- Personally appeared A. M., and made oath that the above affidavit by him subscribed is true.

Before me:

491. Motion for an attachment.]

J. P., Justice of the Peace.

H-ss. Before J. P., Justice of the Peace, at M-, - -, 185-.

J. S. vs. J. D.

On motion of J. D., it being shown by the affidavit of A. M. that A. B. was duly summoned to attend this day before me, as a witness in said action, and his fees for his travel and attendance paid; and said A. B. having neglected to appear: It is ordered, that an attachment be issued against him for the said contempt. J. P., Justice of the Peace. 492. Form of an attachment against a witness.]

H

THE STATE OF NEW-HAMSHIRE.

-SS. To the Sheriff of said County of H., or his Deputy, or to any Constable of the Town of —, in said County.

[1. S.] Whereas it has been shown to me, J. P., a justice of the peace for said county of, by the affidavit of A. M., that A. B., of —, was duly summoned to attend this day before me, the said justice, as a witness in the action betwixt J. S., pl., and J. D., def., and his fees for his travel and attendance paid him, and said A. B. has neglected to appear:

We command you, therefore, to arrest the body of said A. B., and bring him before me, the said justice, to answer to what shall be objected against him, and particularly to the said contempt. And make return of this writ, with your doings therein.

Dated the

day of

-.

Return.

H-89.,

J. P. Justice of the Peace.

185-. I arrested the body of the within named A. B., and now have him before said justice, as within commanded.

H-ss.

J. S., Deputy Sheriff.

-, 185-. I have made diligent search for said A. B., and he is not to be found in my precinct. J. S., Deputy Sheriff.

[Note. As this proceeding is in its nature a criminal proceeding, the form of examination, judgment and mittimus, will be inserted among the criminal proceedings. As the witness is usually discharged upon making his excuse, and payment of costs, these proceedings are rarely necessary.]

493. Affidavit for a habeas corpus to testify.

H-ss. Before J. P., Justice of the Peace, at M.,

J. S. vs. J. D.

185-.

I, J. S., the above named pl., testify and say that one P. W., now a prisoner for debt in the common jail for said county of H., is a material and necessary witness for this deponent in this cause, and is ready and willing to attend as a witness at the trial thereof, and this deponent is advised and verily believes that he can not safely proceed to trial without the testimony of said P. W. J. S.